Can we make good laws during a bad pandemic?

To safeguard liberty, all emergency powers should meet these four tests

April 16, 2020
Photo: Ilya Dmitryachev/Tass/PA Images
Photo: Ilya Dmitryachev/Tass/PA Images

I feel for government lawyers at the moment. I really do. With little warning, they have been required to draft hundreds of pages of new laws to deal with the coronavirus outbreak. These have had to legislate for the “lockdown”—the rules which prevent everyone in the UK leaving their house except in limited circumstances—and a range of other measures which allow for the quarantining of the infected and the disposal of bodies, among other things.

Today, 16th April, is the date by which the health secretary must review the lockdown laws to ensure that they remain necessary to prevent the spread of Covid-19—a good day to take stock.

It is less than a month since the major pieces of emergency legislation were introduced to parliament. For context, a whale of a bill such as that which became the Coronavirus Act, with its huge impact on personal freedoms, would ordinarily start as a white paper and a consultation lasting months, followed by months more of debate, amendments and committee stages. Ordinarily, there are days, perhaps weeks, of debates in the Commons and the Lords.

The Coronavirus Act received royal assent just six days after it was introduced. It was debated for less than three days. Extraordinarily, the lockdown regulations, which imposed the most draconian restrictions on civil liberties since the Second World War, were the subject of no debate at all. Because they are emergency regulations under public health powers, they can be introduced by executive fiat with no need for approval by parliament.

This scrutiny vacuum will continue as long as the regulations stay in force. That is a huge amount of power for the executive which, as the emergency goes on for weeks, months, perhaps even years, becomes ever-less defensible.

Nobody can dispute that the pandemic is a genuine emergency and it is necessary to give the police powers of enforcement to respond to it. But it is reasonable to question whether laws have to happen this way. The lockdown regulations have come under criticism for being unclear. This has not assisted police in enforcing them consistently and miscarriages of justice have already occurred. It is still not entirely apparent why the lockdown  enforcement powers were not brought in as a part of the Coronavirus Act, which was passed in the same week and required a vote, rather than emergency regulations, which did not. If they had been, perhaps even the few days of debate would have ironed out some of the problems.

Since we are likely to be in the teeth of this crisis for a while longer, I propose here four tests for emergency laws to ensure they don’t get out of hand.

Emergency laws must be Scrutinised, Lawful, Impermanent and Proportionate. I even have a handy acronym to help you remember it: SLIP. Why slip? Because if they don’t pass these tests, emergency laws will “slip” away from their purpose and into illiberal places.

Let’s start with “S”—scrutiny. It can be valid to introduce laws without scrutiny where an emergency develops with no warning, But as time passes this justification falls quickly away. While there may have been reason for the lockdown regulations to be brought in without scrutiny, there is no justification for them to continue in this way. Parliament should demand to see the health secretary’s reasoning as to why the regulations are to continue, and ensure that the manner in which police are enforcing them is properly understood.

Now “L.” It may sound odd to say that a law must be lawful. To understand, you need to know the difference between primary and secondary legislation. Primary legislation is an Act of Parliament. It is subject to the debates, amendments and votes I spoke about earlier. It has to be passed into law by both Houses of Parliament. By contrast, regulations require little or no parliamentary scrutiny. But emergency regulations can only be made within the confines of the Act of Parliament which allowed them to be made. this is not just an academic concern; some prominent lawyers have suggested the lockdown regulations go further then the Public Health Act under which they were made and are therefore potentially unlawful. If they had been debated by, rather than foisted on, parliament, this issue may have been corrected.

Thirdly, emergency laws must be impermanent. That means they are strictly time limited. This is because emergencies end but emergency laws have a habit of outlasting the situation which caused them to be necessary in the first place. The “war on terror” was supposed to be temporary but there is no sign, almost 20 years after 9/11, of the laws which it generated being removed from the statute books. Of course, threats can continue for a long time, and perhaps we will never go back to our pre-coronavirus innocence. But we must jealously guard our liberties and ensure they are restricted for as long as is necessary and not a moment more.

Finally, and perhaps most importantly, emergency laws must be proportionate. This is a concept which has come to us through human rights law. It means that laws which interfere with rights must not go further than is strictly necessary to fulfil their purpose. In other words, don’t use a hammer to crack a nut. This is why the lockdown regulations have to be reviewed every 21 days and on their own terms have to be discontinued as soon as any particular restriction is no longer necessary.

It seems likely that the health secretary will renew the lockdown regulations. This is probably the right decision. The coronavirus pandemic is still in its early days. That is a depressing thought, but at least it gives us the chance to get the emergency laws right. They will never be perfect, but with appropriate scrutiny they can at least be better.


Adam Wagner is a barrister at Doughty Street Chambers. He is specialist adviser to the Joint Committee on Human Rights inquiry into the government’s response to Covid-19. He is writing in a personal capacity